IN THE CASE OF:	  

		BOARD DATE:	  19 June 2012

		DOCKET NUMBER:  AR20110016955 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests the validity of an impromptu subrogation agreement be nullified and the subrogation agreement be removed from his record without prejudice.

2.  The applicant states the Mississippi Judge Advocate General (JAG) manufactured the agreement in question and told him to sign it in order for him to get paid after 5 months without pay.  He claims he was told the agreement was invalid since he was not paid.  After he filed many appeals and the G-1 decided he was supposed to be paid, the subrogation agreement was reintroduced to stop him from being paid $12,596.00.  He states the JAG used his destitution and subterfuge to get him to sign a document that did not legally exist.

3.  The applicant provides the subrogation agreement and a legal opinion from the Office of The Judge Advocate General (OTJAG) in support of the application.

CONSIDERATION OF EVIDENCE:

1.  The record shows the applicant is a serving member of the Mississippi Army National Guard (MSARNG).  

2.  A review of the interactive Personnel Electronic Records Management System (iPERMS) shows the subrogation agreement is not on file in the applicant’s Official Military Personnel File (OMPF).


3.  The evidence of record confirms the applicant was injured in a motor vehicle accident on 5 March 2007 while on active duty for training.

4.  On 11 April 2008, the applicant’s attorney filed a civil lawsuit in his behalf against the driver of the other vehicle involved in the 5 March 2007 accident.

5.  On 16 June 2009, the applicant signed a subrogation agreement agreeing that the MSARNG shall be subrogated to the extent that benefits for services, including incapacitation pay and medical treatment, were provided for injuries stemming from the 5 March 2007 accident and that he would pay over to the MSARNG all amounts recovered by suit, settlement, or otherwise from any insurer or other benefit provided to the extent of the benefits provided.

6.  On 20 July 2009, the applicant signed a release agreeing to release the individual and her insurance company from all claims stemming from the 5 March 2007 accident in consideration of $50,000.00.

7.  The record shows as a result of the accident the applicant submitted incapacitation pay claims for the 6-month period from February 2009 through July 2009 totaling $12,596.00.

8.  On 24 November 2009, the Office of the Deputy Chief of Staff, G-1 approved the applicant’s appeal of the National Guard Bureau (NGB) denial of his incapacitation pay claims.

9.  On 8 February 2010, the MSARNG Incapacitation Pay Board President decided the $50,000.00 settlement received by the applicant resulted in recovery of lost civilian income for the purpose of incapacitation pay and as a result had no lost civilian income.

10.  On 22 June 2010, at the request of the Deputy Chief of Staff, G-1, the Army OTJAG published a legal opinion regarding the denial of the applicant’s incapacitation pay.  It opined that the 20 July 2009 release did not allocate the settlement amount in any way; thus, it is impossible to determine what amounts, if any, went toward pain and suffering, lost wages, or medical bills.  Accordingly, no amount of the $50,000.00 settlement can be determined to be earned income.  However, the applicant signed a subrogation agreement on 16 June 2009 in which he agreed to pay over to the MSARNG all amounts recovered by settlement to the extent of the benefits provided, including incapacitation pay.  As a result, OTJAG opined the applicant was required to repay the MSARNG for any incapacitation pay received for two months in 2007, and would have been required to repay the incapacitation pay authorized for the 6 months from February through July 2009, had it been paid.
11.  Department of Defense Directive 1241.01 prescribes the policy for Reserve Component (RC) medical care and incapacitation pay for line of duty conditions.  It provides for authorizing medical and dental care for members of the RC who incur or aggravate an injury, illness, or disease in the line of duty; and provides for pay and allowances to those members while being treated for or recovering from a service-connected injury, illness, or disease, or who demonstrate a loss of earned income as a result of an injury, illness, or disease incurred or aggravated in the line of duty.  There are no provisions in this directive or in any statute or regulation requiring a Soldier to execute a subrogation agreement as a condition precedent to receiving incapacitation pay.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request that the validity of the impromptu subrogation agreement be nullified and that the subrogation agreement be removed from his record has been carefully considered and found to have merit.

2.  Notwithstanding the OTJAG opinion’s reliance on the subrogation agreement, there is nothing in statute or regulation requiring a Soldier to execute such an agreement as a condition precedent to receiving incapacitation pay.  Requiring the applicant to sign the subrogation agreement was an overreach on the part of the MSARNG which had no right to require the applicant to sign an agreement.  As a result, this agreement should therefore be treated as a nullity.  Therefore, the record should be corrected by showing the applicant’s request for incapacitation pay totaling $12,596.00 for the period February through July 2009 was approved, and to show he was eligible to receive the $2,828.98 he received for the months of June and July 2007.  Further, the applicant should be paid the incapacitation pay due for the period February through July 2009, and be reimbursed any amount of the $2,828.98 he received for June and July 2007.  

3.  Finally, although there is no record of the subrogation agreement in the applicant’s OMPF, this agreement and any related documents should be removed from all records once the agreement is nullified.

BOARD VOTE:

__X_____  __X____  ___X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  showing his request for incapacitation pay for the period February through July 2009 was approved and by paying him the total amount of $12,596.00 due as a result;

	b.  showing he was authorized to receive the $2,828.98 of incapacitation pay he received for June and July 2007, and to reimburse any amount of this pay collected as a result of the nullified subrogation agreement; and

	c.  paying him incapacitation pay due from Army National Guard funds.



      __________X___________
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20100030314



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ABCMR Record of Proceedings (cont)                                         AR20110016955



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